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[2012] ZAFSHC 80
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Masiu v Ramos (A217/11) [2012] ZAFSHC 80 (26 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : A217/11
In the matter between:-
ISAAC VUSI MASIU
…..............................................................
Appellant
and
FATIMA DOS RAMOS
…......................................................
Respondent
_____________________________________________________
CORAM:
EBRAHIM, J
et
C.J.
MUSI, J
et
CLAASEN,
AJ
_____________________________________________________
HEARD
ON:
6 FEBRUARY 2012
_____________________________________________________
JUDGMENT
BY:
EBRAHIM, J
_____________________________________________________
DELIVERED
ON:
26 APRIL 2012
_____________________________________________________
[1] I have read the
judgment of Claasen AJ, concurred in by my colleague, C.J. Musi J. I
am constrained, for the reasons which follow,
to disagree with their
reasoning and the conclusions of law reached by them. I do so with
respect to both of them.
[2] The issues raised by
this appeal and cross-appeal are:
2.1 whether the
appellant, as plaintiff in the court
a quo
, had, at the close
of his case, proved on a preponderance of probabilities that the
letter addressed by the respondent (defendant
in the court
a quo
)
on 14 September 2010 to the Regional Manager, Department of Justice,
Welkom, contained matter which was defamatory of and concerning
the
appellant;
2.2 whether the appellant
had, on a preponderance of probabilities, proved that there had been
publication of the defamatory matter
in the letter and that such
publication was attributed to the respondent; and
2.3 whether the costs
order made by the court
a quo
was correct.
[3] It is common cause
that the letter in question was written by the respondent and
forwarded to the person who she thought was
in direct authority over
the appellant, an employee of the Department of Justice in the
capacity of Clerk of the Magistrate’s
Court at Welkom.
It is also common cause
that the letter contained a complaint directed at the appellant. For
ease of reference, I repeat that portion
of the offending letter:
“
I have a
court order against my ex husband. He should pay the maintenance by
the 1
st
of every month. I am struggling every month in that I have make phone
calls to the clerk (Vussie) of Winburg Magistrate Court to
remind him
about my maintenance.
I assumed that once a court order is
issued, that means that the court will assist me in obtaining the
maintenance. But I was proven
wrong. My ex, has been late every month
and out of the blue started to pay only half of the maintenance due
for 3 months in a row.
Nothing was done by the court about his. Can
the clerk of the court allow this?”
[4] The alleged
defamatory portion of the letter is confined to one short paragraph:
“
I can’t
help but think that the clerk is being paid by my ex to allow him to
pay late every month and allow him to only pay
half of what he is
liable to pay.”
[5] The respondent
concludes the letter with a plea for assistance:
“
I am asking
for assistance from you, not only for my sake but for my children’s
and all the other mothers who struggle every
month to get their money
from the court.
I hope to hear from you soon.”
[6] 6.1 The test to be
applied in deciding whether the statement alleging payment to the
Clerk by the respondent’s ex-husband,
was defamatory of the
appellant, is an objective test involving a two-pronged enquiry. The
first is to establish the natural or
ordinary meaning of the
statement. The second is whether that meaning is defamatory of the
appellant. In interpreting the statement,
what is of importance is
not what meaning the respondent intended to convey by the words she
used concerning the appellant nor
is the essence of the test the
meaning ascribed to the offensive words by the person/persons to whom
the letter was published or
whether they believed that meaning. See
SINDANI v VAN DER MERWE
2002 (2) SA 32
SCA at 36C.
6.2 In the appellant’s
particulars of claim it was alleged that the letter was defamatory of
the appellant, because it was
intended by the respondent to imply to
readers of the letter and, in particular, officers of the Department
of Justice, that the
appellant wilfully neglected his duties as Clerk
of the Court; that he was a dishonest and corrupt employee, receiving
bribes from
the public to allow them to transgress lawful court
orders. The appellant did not rely on any innuendo or secondary
meaning. His
case was squarely based on the ordinary meaning of the
words used, which he said were
per se
defamatory of him.
6.3 In her plea the
respondent denied that the statements in the letter pertaining to the
appellant were defamatory of him, were
made with the intent to injure
him in his good name, reputation and feelings. Publication of the
alleged defamatory letter was
not specifically placed in issue.
[7] 7.1 In accordance
with the objective test to be applied, the question is: what meaning
would a reasonable reader of ordinary
intelligence attribute to the
words used concerning the appellant
read in the context of the
letter as a whole
. In applying this test it must be accepted that
the reasonable reader will take into account not only what the words
expressly
say but also what they imply. See
ARGUS PRINTING AND
PUBLISHING COMPANY LTD AND OTHERS v ESSELLEN ESTATE
1994 (2)
SA 1
(A) at 20 F – G.
It must be borne in mind
that the ordinary meaning of the words under consideration does not
necessarily correspond with their dictionary
meaning. (
SINDANI
,
supra
)
It is also true that
the ordinary reader has no legal training or other special
discipline. He/she is not critical or acutely
sensitive or one of
morbid or suspicious mind. See
CHANNING v SOUTH AFRICAN
FINANCIAL GAZETTE LTD
1966 (3) SA 470
(W) at 474 A –
C and the cases there cited.
But it must be borne in
mind that a court, which in applying the objective test, has of
necessity, to subject words used in a document
under consideration to
a close analysis and must guard against the danger of considering
itself to be “the ordinary reader”
of that letter so that
the subconscious temptation to substitute its own views for those of
the ordinary reader, is restrained.
See
SINDANI
supra
;
NGCOBO v SHEMBE AND OTHERS
1983 (4) SA 66
(ECD) at 71 C
– D.
[8] 8.1 Striving to adopt
this technique of interpretation, I turn to examine the words which
encompass the gravamen of the present
appeal. Are the words used by
the respondent of and concerning the appellant in her letter to the
Regional Manager of the Department
of Justice in Welkom injurious in
their plain and ordinary meaning?
Within the limits of my
ability, I have decided this question, finding the task a difficult
one, due to the sometimes unavoidable
and reflex act of assuming the
mantle of the “ordinary reader”. I have, however, in my
deliberations and in reaching
a final conclusion on the ordinary
meaning of the words used, guarded against this danger and its
attendant risks.
I disagree with the
meaning attributed by Claasen AJ and C.J. Musi J to the words used
in respondent’s letter as being
defamatory of and concerning
the appellant; that it establishes in the mind of the reasonable
reader a suspicion that he is
corrupt. In my opinion reading the
letter as I think the notional reasonable reader of ordinary
intelligence and sensibilities
would read it, would lead such a
reader to conclude that:
(a) The respondent is a
divorced woman who has an order in her favour for the monthly payment
of maintenance by her ex-husband,
such payment to be made by the 1
st
of each month.
(b) She believes that
timeous payment of maintenance orders is monitored by the Clerk of
the Court.
(c) She has found this
not to be the case since she has received payments late on more than
one occasion. In addition, for three
consecutive months she has
received only half of the amount due to her in terms of the order.
(d) Her ex-husband has
not been called to account for his failure to comply with the court
order. Due to his wealth and standing
in the community of Winburg and
his habit of “paying off” people to do what he wants, she
wonders if perhaps the Clerk
of the Court at Winburg has also been
paid by her ex-husband to prevent him from bringing her ex-husband to
book for his failure
to pay promptly and fully.
(e) She is a struggling
single parent with two young children of three years and five years
who are wholly dependent on her for
support.
(f) She cannot manage
financially without a struggle unless her ex-husband pays her what is
due on time each month.
(g) She requests someone
in authority over the Clerk of the Court (the Regional Manager of the
Department of Justice) to intervene
on her behalf in order to
establish what the real reason is for the delay and/or failure to
comply fully with the court order,
as the Clerk of the Court has done
nothing about it.
[9] 9.1 The letter is
accordingly a letter of complaint in which the complainant seeks
social justice and social security. Were
the letter to be subjected
to closer scrutiny, the reader might well conclude that the appellant
had actually condoned the non-payment
or the late payment for the
reasons advanced in paragraph 4 of the appellant’s particulars
of claim. But that is not the
test. The court cannot dive into the
mind of the respondent, it can only interpret her language as it
would be understood by a
reasonable person of ordinary intelligence
and experience and she is assumed to have meant what her language
thus interpreted conveys.
This is so because it is assumed that those
to whom the letter is addressed,
viz
the Regional Manager,
Department of Justice and/or officials of the Department of Justice
(in the event that the contents of the
letter came to their
attention) being persons of ordinary intelligence and sensibilities
(ordinary right thinking people) will
have understood the statement
in its proper sense and would not regard the letter as being
defamatory of the appellant in the sense
contended for in the
particulars of claim.
9.2 In reaching this
conclusion I have endeavoured to read the respondent’s letter
as a whole, contextualising the offending
paragraphs through the eyes
of the ordinary reader. In doing so I have been mindful of the fact
that the appellant was singled
out for special attention but this in
itself does not make the statements which are directly relevant to
him defamatory. In this
regard I have also borne in mind case
authorities to the effect that if the words used might lower the
plaintiff in the estimation
of a group or section of people, this is
not sufficient to constitute the delict of defamation. There must
have been a lowering
of the esteem of the appellant in the minds of
ordinary right thinking persons
generally
– that is the
test. See
BOTHA EN ‘N ANDER v MARAIS
1974 (1) SA
44
(A) at 49;
CONROY v NICOL AND ANOTHER
1951 (1) SA
653
(A) at 663;
KING ZWELITHINI OF KWAZULU v NERVIS AND ANOTHER
1978 (2) SA 521
(W) at 528 – 529.
Even if there is room for
the defamatory interpretation placed upon respondent’s letter
by Claasen AJ and C.J. Musi J, the
court is not entitled to adopt a
defamatory interpretation in preference to a non-defamatory one. In
CHANNING v SOUTH AFRICAN FINANCIAL GAZETTE LTD
1966 (3)
SA 470
(W) Colman J propounded the test as follows at p. 473 C –
F:
“
Counsel
for the defendants, relying,
inter
alia
,
upon
Conroy
v Nicol
,
1951
(1) SA 653
(AD)
,
and
S.A.
Associated Newspapers
v.
Schoeman,
1962
(2) SA 613 (AD)
,
urged upon me the proposition that a Court dealing with a defamation
case is not entitled, where the matter complained of is capable
of
more than one reading, to adopt a defamatory interpretation in
preference to a non-defamatory one. If a newspaper article is
equally
capable of both types of interpretation,
h
e
argued, the plaintiff must fail. That proposition is, in my judgment,
a sound one, provided that this qualification or clarification
is
borne in mind: the test is not whether, to the Court itself, after it
has had the benefit of a careful analysis of the article,
the article
seems to bear one meaning rather than another, or seems equally
capable of bearing both meanings. The enquiry relates
to the manner
in which the article would have been understood by those readers of
it whose reactions are relevant to the action,
and who are sometimes
referred to as the 'ordinary readers'. If, upon a preponderance of
probabilities, it is found that to those
readers the article bore a
defamatory meaning, then (subject to any defences which may be
established), the plaintiff succeeds,
even though there is room for a
non-defamatory interpretation: if not, the plaintiff fails (see
Gluckman
v Holford
,
1940 T.P.D. 336).
”
The
test laid down in
CHANNING
was expressly
approved by the Appellate Division in
DEMMERS v
WYLLIE AND OTHERS
1980 (1) SA 835
(A) at 843 E.
On the
facts of the present appeal, the preponderance of probabilities
favours a non-defamatory interpretation and for that reason
the
appellant could not have succeeded with his claim in the court
a
quo
.
[10] 10.1 I deal now with
the issue of publication. It is common cause that the respondent’s
letter found its way to the Regional
Manager, identified in evidence
by the appellant as Mr. Hlatswayo, who handed the letter to the
Office Manager at the Magistrate’s
Court in Winburg, one Mr.
Mafereka, who handed it to the appellant.
This was followed by an
investigation. What the terms of reference of that investigation
were, who held the investigation and what
the ultimate findings of
that investigation were, is unknown. It is not surprising therefore
that Mr. Groenewald, who appeared
for the respondent, both in the
appeal and in the court
a quo
, disputed that publication of
the contents of the letter had been proved by the appellant.
There
is certainly no evidence on my reading of the record of the
proceedings in the court
a quo
of any publication having taken place, at the
behest of the respondent, apart from that to the Regional Manager,
Mr. Hlatswayo
to whom the letter was addressed. It was Mr.
Hlatswayo who handed the letter to Mr. Mafareka. There is no
evidence whatsoever
that Mr. Mafereka read the letter and there is
no basis in the evidence for inferring that he did. But even if I
were to assume
in the appellant’s favour that Mr. Mafereka
read the letter and publication did take place, the test is whether
such
publication would necessarily or ought reasonably to have been
foreseen by the respondent. See
PRETORIUS v NIEHAUS EN
'N ANDER
1960 (3) SA 109
(O);
SIMPSON v WILLIAMS
1975 (4) SA 312
(N). The respondent addressed
the letter to the Regional Manager and it was he who received the
letter, opened it, read it and
handed it to Mr. Mafereka. How could
the respondent, a lay member of the public writing to complain
about service delivery
at the Magistrate’s Court, be expected
to foresee that Mr. Hlatswayo would not deal with the complaint
himself, but would
hand it over to Mr. Mafereka? On the evidence as
it stands, the foresee-ability test does not favour the appellant.
Publication
is an essential element of the delict of defamation for without it
the esteem in which a person is held by others
cannot be
diminished. See
CROTS v PRETORIUS
2010 (6) SA
512
(SCA)
. In my view, the evidence of
publication in the present appeal is non-existent. The evidence
which it is alleged by the majority
court in this appeal ought to
be considered is just too vague to support a claim for defamation.
See
CROTS v PR
ETORIUS
,
supra
.
Even if I am wrong in this regard, for the reasons already set out
in this judgment, there was no defamatory matter to publish.
On
this ground too therefore, the appellant’s claim could not
have succeeded.
[11] In granting
absolution from the instance, the learned magistrate in the court
a
quo
, appears to have “mismanaged” the evidence before
him. I say so because of the great difficulty I have in understanding
his reasoning. Nevertheless whilst he, quite correctly, granted the
application brought by the respondent to absolve her from liability,
he failed to grant the appropriate costs order which ought to have
followed the result.
[12] Accordingly I would
make the following order:
1. The appeal is
dismissed with costs, such costs to include the costs of the hearing
of 6 February 2012.
2. The cross-appeal is
upheld with costs.
3. The order of the court
a quo
is set aside and substituted with the following order:
“
The
application for absolution from the instance is granted with costs.”
_____________
S. EBRAHIM, J
On behalf of appellant:
Adv. P.W. Oberholzer Instructed by:
Wessels & Smith
BLOEMFONTEIN
On behalf of respondent:
Adv. W.J. Groenewald
Instructed by:
Symington & De Kok
BLOEMFONTEIN
/sp